Tools in Network: an E-Net Approach to Sharing Mediation Competences.

More on the specific features of mediation

It is intuitively obvious that mediation is different both from the mere negotiation (direct negotiation with no third party) and from arbitration (where a third non mediating agent is appointed by the parties to take a decision on their behalf). Likewise, mediation activities are completely different also from "expert witnesses" provided by professionals in several fields (for instance in the legal, economic, psychological and pedagogical field), nor is their aim that of reaching a mere "compromise" between the parties.

Mediation does not necessarily imply a "resolution", i.e. the disappearance of the conflict, but it primarily encourages the prevention or reduction of its destructive consequences. In fact, confrontation between different needs can at the same time be a factor of growth and social change and not only a cause for conflict. As the presence of different and sometimes diverging needs is inevitable in any community and a fruitful element to human evolution, it is impossible to expect that conflicts simply "disappear". The conflict dimension therefore belongs to any individual and community life and has always existed in every time and type of society. What we can change is the way to tackle this dimension and consequently the way to find responses. In fact, the way the social context interprets and considers conflict has a strong influence on how conflict can be managed. Ultimately, the cause of social uneasiness connected to conflict situations is not only to be sought in the level of conflictuality, but in the inadequacy of the approach that the social context adopts to resolve conflict situations. In this context, mediation becomes an "alternative" approach to conflict and cohabitation issues: resorting to mediation means "finding a new way to see things" (culture of mediation).

Mediation strategies exist and operate irrespectively to the existence and the action of judicial systems. Mediatory interventions can influence the course of judicial proceedings or be applied at the same time and independently from them. Mediation is no duplicate of legal action, nor a substitute for court proceedings, even though sometimes it can replace them as an "alternative" strategy, i.e a strategy based on a consensual approach to conflict management and the construction of a social bond (this is another way to understand the above sentence: "finding a new way to see things"). The distance and the difference between mediation and legal-judicial proceedings is shown, for instance, by the fact that mediation was initially and traditionally applied to those areas where the authoritative-adjudicative approach had no room (for instance to international controversies and community justice). On the other hand, the fact that mediation is not necessarily part of the judicial system does not prevent national legislations from recognizing or encouraging it as a good instrument to manage conflict and cohabitation issues. A number of laws do in fact contain provisions allowing judges or lawyers to refer parties to various mediation practices, and the parties can legitimately chose mediation also if they were not advised accordingly (by judges, lawyers or others) or obliged by the law. Finally, it is known that no law can punish someone who refuses to enter mediation programmes. A close and thorough analysis of "what mediation is not" can be found in Stefano Castelli, La mediazione. Teorie e tecniche, Raffaello Cortina, Milano 1996, pp. 25-53.